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6. Heard both parties and perused material available on record. There is no dispute in respect of the date of search and seizure operation on 24.04.2014. Therefore, the applicability of section 271AAB of the Act is justified. There is no dispute in owning the cash seized during the course of search and seizure operation as undisclosed income of the assessee which is out of his professional income. There is no dispute that the assessee offering the same for taxation. There is no dispute in respect of payment of tax together with interest in respect of undisclosed income. There is no dispute in respect of filing of return of income to the specified previous year declaring such Page | 4 (ASSESSMENT YEAR-2014-15) undisclosed income. Therefore, in our opinion the facts and circumstances in the present case fulfils the conditions as contemplated clause (a) in sub-section (1) of section 271AAB of the Act to impose penalty. Therefore, we find no infirmity in the order of CIT(A) and confirming the penalty imposed by the AO u/s 271AAB(i)(a) of the Act.

7. Further this Tribunal on similar and identical facts decided the issue in the case of Ganpati Industrial Pvt.Ltd. & Jekay International Pvt.Ltd. vs DCIT in ITA No.1927 & 1928/Kol/2016 vide order dated 15.02.2019 and for better understanding the relevant portion is reproduced herein below:-

4. The Ld. Counsel for the assessee, Shri. M.Satnaliwala submitted that notice of penalty was issued by the AO u/s 271AAA of the Act while the penalty was finally imposed u/s 271AAB of the Act. He contended that the penalty notice issued by the AO, therefore, was defective and the penalty imposed in pursuance of such defective notice is not sustainable. He also contended that the specific limb of section 271AAB of the Act, was not mentioned by the AO as applicable to the facts of the assessee's case and in view of the same, penalty imposed u/s 271AAB of the Act is liable to be cancelled. He, submitted that commodity profit was earned by the assessee and since it was duly disclosed in the return of income it was not a case of undisclosed income attracting the penal provision of section 271AAB of the Act.

9. Regarding the contention of failure of the AO to point out specifically a particular limb of section 271AAB of the Act, the Ld. DR submitted that section 271AAB has no such limbs and what are given therein are the different situations involving different rates of penalty. He contended that since the case of the assessee was covered by one situation attracting penalty under section 271AAB @ 10% of the undisclosed income, penalty @ 10% was rightly imposed under section 271AAB. He contended that the commodity profit was not reflected in the books of accounts of the assessee and since it was reflected in the documents seized during the course of search and it was a clear case of undisclosed income attracting penal provision of section 271AAB of the Act.

"The relevant penalty order, assessment order and the submission of the appellant are referred and perused. It is apparent from the facts and circumstances of the case, as mentioned in the relevant penalty order, that the Assessing Officer was justified in the levying of penalty u/s. 271AAB of the Act. Penalty @10% of the disclosed income i.e. Rs.50,00,000/- has been correctly levied u/s. 271AAB of the Act, by the Assessing Officer. Appeal on this ground is dismissed."

15. In answer to the submissions made by Ld. Counsel for the assessee that the penalty notice is defective and penalty imposed thereon is not maintainable that on perusal of the penalty notice which is at page No.20 of Paper Book, it is true the AO issued notice u/s 274 r.w.s. 271AAA of the Act. But, however, in the body of the said notice the AO clearly mentioned his intention why an order imposing penalty on you should not be made u/s 271AAB of the Act. Further, it is needless to say in response to the said notice, the assessee participated in the penalty proceedings and it is evident from the penalty order that the assessee specifically contended that the proceedings u/s 271AAB are not applicable for the search conducted u/s 132 of the Act. The Ld.DR as narrated above the submissions and case laws supporting that even though quoting of wrong provision by the competent authority does not take away jurisdiction of the authority and such orders cannot be vitiated on such sole ground. In our opinion, the submissions as made by the Ld.AR in this regard are not tenable and they are liable to be rejected.